With the recent Menomonee treaty rights lawsuit (which they lost) and the recent Chippewa spear fishing declarations that would institute zero-bag limits for non-Chippewa fishermen, controversy is once again raging regarding this issue.
    It may be advantageous to review the Chippewa treaty rights issue in order to gain an insight as to why so many people are opposed to them. The Chippewa treaties of the 1830’s were all of limited duration and the conditions of same were all carried out, except one. More on that, later. There was no mention of guaranteed perpetual hunting and fishing rights. The federal court concocted that guarantee in the twentieth century.
    In 1850, President Zachary Taylor issued an Executive Order mandating that the Chippewa remove themselves to west of the Mississippi River. The Chippewa refused. The federal government did attempt to trick them into leaving Wisconsin, but failed. The government stopped short of forcible removal. Meanwhile, the Chippewa were lobbying for reservations in Wisconsin, which the federal government granted in the Treaty of 1854. Now you have it; the Chippewa refusal to remove themselves was the one treaty condition that wasn’t met. Federal treaty law states that if either party violates a condition of a treaty, that treaty is null and void, but ironically, by violating a condition of their treaties in the 1800’s, the Chippewa gain control of 50% of northern Wisconsin’s resources in the 1990’s.
    There is another reason why many people argue that Chippewa treaty rights are non-existent. That is the Indian Claims Commission (ICC). The ICC was instituted by Act of Congress in 1946 and was in effect into the 1970’s. The purpose of the ICC was to address and adjudicate the many claims being brought forth by Indian tribes, countrywide. The Chippewa bands went before the ICC with their complaints of treaty discrepancies and were awarded over $20 million in three payments. In receiving these payments, they testified that they were surrendering all rights relating to the treaties. Section 22 of the ICC Act is interesting. It states, "The payment of any claim...shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy. A final determination against a claimant made and reported in accordance with this Act shall forever bar any further claims or demand against the United States..." But yet, within a year of receiving their final payment, the Chippewa sued the citizens of Wisconsin for the same rights they testified they had relinquished before the ICC!
    Next, let’s review the reasoning of the federal court in awarding the Chippewa treaty rights. The first problem was how to get rid of Zachary Taylor’s 1850 Removal Order, mentioned earlier, as an Executive Order has the same effect as law. Here’s what happened. The court determined that the Chippewa retained usufructuary rights under a provision in an 1837 treaty that provided that the Chippewa signatory bands could continue to enjoy usufructary rights on the land they ceded to the United States "during the pleasure of the President of the United States," a term the court found to be ambiguous. It could mean an "at will" kind of occupancy in which the President was free to order the Chippewa out of the territory at any time for any reason or it could mean he was free to do so only if the Chippewa misbehaved and incurred his displeasure. Or it could mean? Curious, no? Remember that this is the court talking. But then the Chippewa produced contemporary reports that supported their contention that when the tribes had signed the treaties in 1837 and 1842, they understood that "the pleasure of the President" meant their right to hunt, fish and gather would continue undisturbed unless they misbehaved. The Court then concluded that the President issued the order without any evidence that the Chippewa had misbehaved and declared the order illegal; neither authorized by the treaties nor within the scope of the President’s power.
    There are two problems with the Court’s reasoning. First, twenty years prior to 1850, Congress enacted the Indian Removal Order, giving the government the legal right of removal, upon Indian approval. Second, the misbehavior Issue. The Chippewa of the time knew full well that the government didn’t punish Indian misbehavior by sanctioning the entire tribe. They punished individuals for misbehavior, just like everyone else. If memory serves, through legal maneuvering, these two issues were never brought before the Court.
    Furthermore, the Chippewa themselves never raised the misbehavior issue during treaty negotiations. It was only years later that they raised it. And at that time they were not saying that they could remain if they behaved; they were complaining that they could not understand why they were being pushed out of their lands earlier than a verbal promise by Indian Superintendent Stuart that they could remain for a long time.
    The court had one other problem, inasmuch as it had to somehow dismiss the Chippewa's own contemporaneous statements indicating they understood they had sold all their rights to the United States in their treaties. Chief Buffalo, senior chief and elder statesman of the Chippewa, plainly indicated that the Chippewa in 1854 were giving up their rights in exchange for reservations and the promise that they would not be forced to resettle outside Wisconsin. How did the Court resolve this problem? Simply by claiming that the Chippewa had misunderstood the 1837 and 1842 treaties, and that Chief Buffalo’s expression of understanding and acceptance had nothing to do with the rights "retained" under them.
    As Professor James Clifton, foremost authority on the Indian of the Old Northwest Territory, wrote years ago, "In this way, while seeming to hew to the letter of the law, the 7th Circuit Court drastically revised history so as to amend the Chippewa treaties, awarding to the late twentieth century descendant's special rights no one at the time had intended or anticipated. This is the legal basis for the growing human conflict which promises to embroil the citizens of Wisconsin for decades to come."
    It is now nearly three decades and counting. The controversy still rages with respect to Chippewa treaty rights. The Menomonee tribe sued the citizens of Wisconsin for treaty rights in the eastern third of the state. Same scenario. Once their ceded lands were surveyed and offered for sale by the government, they were to remove themselves. We all know this was done, but the Menominee, too, refused to remove and successfully lobbied for a reservation. The Menominee, too, went before the Indian Claims Commission and were awarded $8.5 million.    However, in the Menominee case, their participation in the ICC was used as evidence; and they lost.

So, do the people who are labeled "anti-treaty" have a case? We think so!